1994 PLP 624 (MLD)

The petition is moved against the order of the learned Sub-Judge, Muzaffarabad, passed on December 31, 1992, whereby an application for appointment of commission, to assess the value of the property in the shape of improvement, claimed by the plaintiff-petitioner, was declined.

2. Qazi Mahboobul Haque brought a suit for declaration, claiming his exclusive right in the suit property, comprising Survey No.522-min, measuring 10 Kanals, situate in village Langarpura, Tehsil Muzaffarabad. He denied the title of the defendant-respondents. In the alternative, he claimed adverse possession and improvement, made in the sum of Rs.50,

000. The improvement was in the shape of raising construction and fruit-bearing plants, raised thereupon. The claim of the plaintiff was contested. A counter-suit was also brought by Bashir Hussain and others. Both the suits were consolidated and issues were framed accordingly. On April 6, 1987, plaintiff-petitioner was directed to lead his evidence in support of his respective claim. The petitioner filed an application containing the particulars of the witnesses sought to be produced by him. The application was moved on April

16. In this application, only 3 witnesses were sought to be summoned through the Court. On completion of evidence of rest of the witnesses, the plaintiff himself appeared as witness on November 21,1990. On that day, his evidence was closed and the defendants were directed to produce their evidence in rebuttal, if any. The evidence of defendant-respondents was closed on November 23, 1992. Meanwhile, an application was moved by the petitioner for appointment of Commission, to assess the value of the alleged improvement, made by him. The application was moved on November 23, 1992. In his application, it was stated that the Commission may be appointed to assess the value of the improvement claimed by the plaintiff and for that, the plaintiff was prepared to pay the requisite fee. No reason was given in the application as to why the application was not moved at the earliest or that why the appointment of commission was necessary or that who shall be appointed as Commission, to assess the alleged improvement in question. The application was contested. The learned Sub-Judge declined the appointment of Commission as, in his view, it was not conducive to the interest of justice, particularly in the present position when the plaintiff-petitioner had already availed ample opportunity to lead his evidence in support of his respective claim, to allow the application. This order is assailed in the present petition.

3. It is averred that the appointment of the Commission was essential in order to help the Court to assess the value of the improvement. No other reason was mentioned in the petition.

4. The Commission is appointed under Order 26, Rule 9, C.P.C., for the purpose of local investigation. It was postulated that in any suit, in which the Court deemed a local investigation to be requisite or proper for the purpose of elucidating the matter in dispute, or of ascertaining the market value of any property, or the amount of mesne profits or damages or annual net profits, the Court may issue a Commission to such person as it thinks fit. The authority of the Court to appoint Commission is discretionary. It is exercised in suitable matters. A party cannot claim appointment of Commission for local investigation, as a matter of right. In the present case, it was enjoined upon the petitioner to seek assistance of the Court for the appointment of an expert as Commission, to assess the alleged value of the improvement. This was not done in due time. No reason has been advanced to condone the negligence. The application was moved on the conclusion of the evidence of the parties, when the case was adjourned for final arguments. It appears that at a very late stage, it was realised that the evidence already led by the petitioner, was very weak, insufficient and incredible, to support his alleged claim, as such it was felt advised to move for appointment of the Commission, as additional evidence, to substantiate his claim. Such a belated action is not permissible under law to be complied with, as it tantamount to cause prejudice to the opposite party which has already concluded its evidence in rebuttal. Moreover, the appointment of Commission is made when the Court is of the opinion that such appointment of Commission was necessary, to enable it to settle the controversy at rest. In the present case, no such necessity was even considered by the trial Court. Therefore, the application was rightly rejected by denying to fill in the lacunae or to make improvement in the weak evidence. There is no force in the petition. It is, therefore, dismissed. AA./22/HCA Revision dismissed.